Posted
by
Soulskill
on Thursday February 28, 2013 @11:43AM
from the system-and-method-for-being-a-leech dept.

Zordak writes "According to Law 360, H.R. 845, the 'Saving High-Tech Innovators from Egregious Legal Disputes' (SHIELD) Act of 2013 would require non-practicing entities that lose in patent litigation to pay the full legal costs of accused infringers. The new bill (PDF) would define a 'non-practicing entity' as a plaintiff that is neither the original inventor or assignee of a patent, and that has not made its own 'substantial investment in exploiting the patent.' The bill is designed to particularly have a chilling effect on 'shotgun' litigation tactics by NPEs, in which they sue numerous defendants on a patent with only a vague case for infringement. Notably, once a party is deemed to be an NPE early in the litigation, they will be required to post a bond to cover the defendants' litigation costs before going forward."

A small shop can not afford to take a case to court even without paying the defendant's lawyers. An IP lawsuit costs millions of dollars to pursue; more money than any normal person will make in his entire working lifetime. The courts are for the big fish. For the rest of us, any involvement with them leads to bankrupcy.

The bill is designed to particularly have a chilling effect on 'shotgun' litigation tactics by NPEs, in which they sue numerous defendants on a patent with only a vague case for infringement.

So to achieve that, instead of addressing shotgun litigation by any litigant, they create an inhibition to all NPEs. That would include things like the The Open Invention Network [wikipedia.org], and would exempt practicing entities like SCO. Does that sound right?

This legislation would create unequal patent protection for big corps versus independent inventors. Once a patent is sold by its original inventor, it can only subsequently be sold to big corps or it loses some of its power. This means big corps will have an advantage compared to independent inventors, who will have less ability to market their inventions.

If the problem is shotgun patent enforcement, regulate shotgun patent enforcement. If the problem is overbroad patents, narrow the allowed scope of patents. Address the real problem with equal treatment for all litigants under the law. Don't create a preferred class for big incumbent corps and inhibit independent competition.

This is nothing more than another land grab by big incumbents who use our government to inhibit free market competition.

I like this bill but I would take it a step farther. If the patent troll loses, not only do they have to pay the defense, they need to compensate the poor SOB they sued, AND they need to lose access to the original patent they where suing over.

The "lone inventor around the corner" using his patent to fight the big corporations is kind of a myth nowadays. Patents are used to stifle innovation and protect entrenched businesses, not to prevent corporations from stealing the little guy's ideas. I'm pretty sure the vast majority of patent-holders are corporations.

No, he means a legitimate small player *making use of the system as it was intended under the concept of equal protection under the law*. Having money is not supposed to be a prerequisite for obtaining justice in the US, at least in theory, of course.

I should be able to sue Apple or Samsung or some other multinational and if my case is correct and proven under the law, I not only deserve to win, I am supposed to win.

The fact that patent trolls can weasel into the space left for the small guy to have his voice heard doesn't mean that that method becomes expendable. It means we need a solution that filters patent trolls out better.

I agree that trolls need to be stopped. My own organization have been extorted by them. They're a parasitic entity made possible by government rules that would not exist without a broken patent system. However, fix the patent system, don't simply carpet bomb any requests from people who don't have money.

Loser pays is a terrible idea, unless you can guarantee that the legal system 100% of the time accurately determines who is wrong (as opposed to who has the best/most lawyers).

Without loser pays, anyone who gets sued already lost. You get to pay millions to prove your innocence. So there's a loss for being innocent. Loser pays fixes that. What would you propose to protect the innocent from frivolous lawsuits?